Open Adoption is Now the Norm

Thu, 22 Mar 2012 15:36:00 GMT

New report: Boom in ‘open’ adoptions as most birthmoms stay in contact with child’s new family - AP 3-20-12 Excerpts: ... only about 5 percent of infant adoptions in the U.S. now take place without some ongoing relationship between birth...

New report: Boom in ‘open’ adoptions as most birthmoms stay in contact with child’s new family - AP 3-20-12

Excerpts: ... only about 5 percent of infant adoptions in the U.S. now take place without some ongoing relationship between birth parent and adoptive family, according to a comprehensive new report ... based on a survey of 100 adoption agencies.

Of the roughly 14,000 to 18,000 infant adoptions each year, about 55 percent are fully open, with the parties agreeing to ongoing contact that includes the child, the report said. About 40 percent are “mediated” adoptions in which the adoption agency facilitates periodic exchanges of pictures and letters. ...

The Donaldson institute, citing its own research and numerous other studies, said most participants find open adoptions a positive experience. In general, the report said, adoptive families are more satisfied with the adoption process, birthmothers experience less regret and worry, and the adopted children benefit by having access to their birth relatives, as well as to their family and medical histories.

140 Law - Legal Headlines for Thursday, March 22, 2012

Thu, 22 Mar 2012 13:47:22 GMT

Here are the leading legal headlines from Wise Law on Twitter for Thursday, March 22, 2012:

- Rachel Spence, Law Clerk

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

KINELON BUTLER CHESTER MENDHAM MORRIS COUNTY NJ DIVORCE MEDIATION ARBITRATION ATTORNEY

ccaesq@att.net (Charles C. Abut) — Thu, 22 Mar 2012 13:15:51 GMT

Instead of making a custody determination based on an assessment of the statutory factors, the trial court abdicated its responsibility by allowing the child to decide with whom she lives. The decision is reversed. Johnson v. Mack, New Jersey App....

HACKENSACK PARAMUS FAIRLAWN ENGLEWOOD CLIFFS BERGEN COUNTY NEW JERSEY MEDIATION ATTORNEY

ccaesq@att.net (Charles C. Abut) — Thu, 22 Mar 2012 13:06:17 GMT

As reported in the current [April 2012] edition of New Jersey Monthly Magazine, Charles C. Abut, Esq. has again been peer-selected for inclusion in New Jersey's Top 100 Lawyers. Chosen from among the more than 80,000 attorneys in New Jersey,...

As reported in the current [April 2012] edition of New Jersey Monthly Magazine, Charles C. Abut, Esq. has again been peer-selected for inclusion in New Jersey's Top 100 Lawyers. Chosen from among the more than 80,000 attorneys in New Jersey, Mr. Abut has also been included in Best Lawyers in America in each year since 2000 and in Top 100 New Jersey Superlawyers. A graduate of Columbia [BA] and Cornell [JD], Mr. Abut is certified by the New Jersey Supreme Court as a matrimonial law attorney. March 13, 2012

Medical Review Panels

rmullman@gpoliakoff.com (Ray Mullman) — Thu, 22 Mar 2012 12:56:17 GMT

Nancy W. Trentham represents the nonprofit Kentucky Initiative for Quality Nursing Home Standards. She recently wrote a great editorial about Kentucky's attempts to create "medical review panels". House Bill 361 proposed by Rep. Melvin Henley, D-Murray "would create so-called "medical review panels" explicitly designed to thwart resident justice and provide specific benefit to well-heeled corporate interests".

"It would have to funnel through a "star chamber" chock-full of attorneys and physicians (mind you, there are no consumer representatives on the panel) to obtain the official seal of approval before his case can make its way to court.
Unlike every other citizen, unlike every other injured person, you cannot go to court unless and until you go to the special panel. This will take you and your family more time and will cost you more money.
And, it is important to remember, these panels are tipped in the providers' favor. Not only do operators have a cadre of shrewd lawyers defending them, but the panel members hearing the case would be professionally biased toward their nursing home pals. Even if you decide to engage in this bureaucratic nightmare, you might as well kiss speedy justice goodbye.
These panels could take up to six drawn-out months to render a decision, if all parties are able to participate. Some rural communities may have difficulty locating physicians or attorneys willing to close their practices for a day to take part in these panels. They know if they do participate that would be lost income for them and a hardship on their own patients and clients — not to mention a detriment to their local economies.

"So why are lawmakers picking on nursing home residents who have done nothing wrong? Money. Nursing homes rake in millions of dollars. The corporate fat cats have decided profiteering outweighs resident safety and care, and defending against lawsuits is a nuisance to their revenue stream.
If the industry can erect enough barriers to slow or stop lawsuits, then CEOs can fill the corporate coffers and ensure happy shareholders. Meanwhile, care worsens for residents by giving more protection to providers and less to residents."

The solution is to employ sufficient numbers of qualified caregivers. "According to the nursing home industry's own data, both the cost and the frequency of lawsuits in Kentucky declined when staffing ticked higher. By investing in their own work force, nursing home companies will yield a higher rate of return Not only will residents enjoy a higher quality of life and care, but lawsuits will also decline. Seems like a no-brainer."

How to Move Forward Romantically Following Divorce

stevens@stevensfirm.com (J. Benjamin Stevens) — Thu, 22 Mar 2012 12:05:07 GMT

According to a recent article appearing on Yahoo.com, people emerging from a divorce may not find much like in the dating department immediately thereafter. Though for some who had to go years without any new romance this is not only normal, it’s also healthier than a rebound relationship. New York psychologist Leah Klungness, Ph.D. and co-author... Continue Reading

According to a recent article appearing on Yahoo.com, people emerging from a divorce may not find much like in the dating department immediately thereafter. Though for some who had to go years without any new romance this is not only normal, it’s also healthier than a rebound relationship.

New York psychologist Leah Klungness, Ph.D. and co-author of The Complete Single Mother, says that while a divorcee may be experiencing pain and confusion following a divorce, it’s better to go through that then to numb yourself with an instant attempt to date. The distraction actually makes the healing process take longer.

As the single time drags on you may want to figure out why you’re dateless. Usually there are two main reasons for a post-divorce dating drought.

1. You’re not ready to date yet

You may feel lonely, your friends and family may try to set you up with someone but that does not mean you’re actually ready to date again. “Emotional preparedness for dating doesn’t happen magically because the final papers have been signed,” says Dr. Klungness. “Anger, bitterness, thoughts about betrayal and infidelity can linger. If these feelings aren’t worked through, they quickly surface, even in casual dating situations, and can sabotage any chance of romance.”

The best rule of thumb according to Dr. Klungness is that, “When the thought of dating starts with an ‘I should’ instead of an ‘I want,’ it’s a red flag.” Rather than rush into something you’re not really ready for, regrouping and giving yourself time to heal is the best plan. Use the time to do the things you love, concentrate on yourself and put yourself first for once.

One sign that you may be ready to date is when people start to genuinely look attractive to you. “Repeated instances of being attracted to different people suggests the authenticity of your feelings,” explains Jerald Jellison, Ph.D., author of Managing the Dynamics of Change. According to Dr. Jellison, when you’re attracted enough to consider spending time with five different people you should be ready to begin dating again.

2. Your approach to dating is outdated

If you’ve given yourself time to heal and still aren’t meeting the right kinds of people then maybe your problem is logistical. You’re likely meeting people at the wrong places or with the wrong group of friends. The same strategies you employed while you were young likely won’t work today, you’ve matured and so should your approach to meeting new people. Trying online dating, organized functions, engaging in activities you enjoy and meeting others involved are all possibilities.

Do things with a potential mate because you enjoy them and have common interests such as exercising, hobbies or professional activities. Dr. Jellison says that “After you identify people with whom you’re comfortable doing different things, then see if romantic feelings develop.”

Perhaps most importantly, avoid trying to recreate what you had with your former spouse. “The number-one cause of post-divorce dating disasters is the desire to regain what was lost from the social life of the marriage,” warns Dr. Klungness.

If you find yourself facing the emotional turmoil of family law problems, you need the help of an experienced South Carolina family law attorney to guide you through the messy process.

Source: “Why you’re stuck in a dating drought after divorce,” by Nina Malkin, published at Yahoo.com.

See Our Related Blog Posts:

spage@harringtonfamilylawyers.com (Stephen Page) — Thu, 22 Mar 2012 03:24:32 GMT

RT @whiteribbonaust: Reading: "Kit to prevent domestic violence in rural Australia", ABC, http://ow.ly/9NPGu

Foreclosure Defenses: Round 1

gnapier@troutmanhays.com (Gregory Adam Napier) — Wed, 21 Mar 2012 20:24:07 GMT

Most people focus on the mortgage (real estate lien) in their defense efforts because often the mortgage does not have the name of the company filing the foreclosure on its face. However, the document most pertinent to the issue of standing is the promissory note (loan agreement). The promissory note is a negotiable instrument which means that it usually can be transferred. However, the way it gets transferred is very important (KRS 355.3-201).

First, a shout out to Ben Carter, a former classmate of mine and one fine presenter with a flair for fashion. Thanks Ben for helping make sense out of foreclosure mayhem.

So much has been written about the dilemma of massive numbers of foreclosure actions that I am hesitant to dive into the fray. However, even though many would like us to perceive the economy issues as having resolved, I think the foreclose crisis will continue with us for some time. Ordinarily, if someone has fallen behind on payments on their residence, a Chapter 13 works because payments on those arrears are stretched over five years with zero interest. Sometimes a Chapter 13 just is not a great idea because the non-exempt assets are so high that the plan payments cannot be met due to the monthly budget limitations of the debtor.

When a Chapter 13 is not the best approach and you really are determined to keep the home, then the drop back and punt position is to fight the foreclosure action. Step one in fighting back is to make sure the party bringing the foreclosure action actually has the right to prosecute it. This “right” is referred to as standing. Under Kentucky Revised Statutes (KRS 355.3-301) only certain parties have the right to enforce the promissory note; the right to pursue a lawsuit.

I need to go on a slight tangent here to make sure we are on the same page. Most people focus on the mortgage (real estate lien) in their defense efforts because often the mortgage does not have the name of the company filing the foreclosure on its face. However, the document most pertinent to the issue of standing is the promissory note (loan agreement). The promissory note is a negotiable instrument which means that it usually can be transferred. However, the way it gets transferred is very important (KRS 355.3-201).

Let’s think about a common, ordinary check. A check is a negotiable instrument. You can transfer a check written to you by indorsing your signature on the back of it. If all you do is sign your name, then whoever has that check in their possession can cash it. If you sign your name followed by “to John Quincy Adams”, then only John Quincy Adams can cash it. The former indorsement is “payable to bearer”, but whether it is a payable to bearer or to John Q., they can only cash the original check; they would go to jail for trying to cash a photocopy of a check.

A promissory note for a home loan is exactly the same as a check: 1) to transfer it then it must be indorsed, and 2) it can only be “cashed” or enforced by the party who has physical possession of the original note (see the caveat below). So, if the party bringing the lawsuit cannot produce a properly indorsed original promissory note, then they cannot show they have standing. Challenging standing is the first crucial defense to a foreclosure. At best, the suit will go away because they discover they actually do not bear (hold) the promissory note. At least, it will slow down the case while they dig through tons of documents to locate the original promissory note.

CAVEAT: There are some responses to this defense as described in the Uniform Commercial Code, but they are beyond the scope of this particular article and it is the burden of the party pursuing the bankruptcy to assert them.

Shame them into providing better care?

rmullman@gpoliakoff.com (Ray Mullman) — Wed, 21 Mar 2012 18:42:38 GMT

Kaiser Health News blog "The Capsule" had an informative article on the failure of Medicare’s seven-year effort to increase quality improvements in hospital care by publishing key performance metrics on its Hospital Compare website. The effort has not resulted in fewer patient deaths, according to a new Health Affairs study. Health policy experts have hoped poor performing hospitals would be embarrassed enough by their public scores to make changes.

The new study questions whether shame and embarrassment lead to better outcomes for patients, such as their chance of survival in the month after they were discharged. Hospital Compare was found to have no effect on the 30-day survival rate of heart attack and pneumonia patients, according to the study.

Starting in October 2013, hospitals will have an added reason to improve their mortality rates. As part of the health law’s value-based purchasing program, mortality rates will be added to the factors Medicare uses in determining how much to reimburse hospitals

Stark & Stark Attorney to Present at NYARM's 2012 Conference

Wed, 21 Mar 2012 18:28:23 GMT

David J. Byrne, Co-Chair of Stark & Stark’s Condominium and Co-op Practice Group, will present materials related to new foreclosure laws and decisions as well as how to effectuate foreclosures. Mr. Byrne will also address how shareholders and managing agents can effectively deal with abandoned units in New York.

The presentation is sponsored by NYARM and will be held Wednesday, March 28, 2012, from 11:00 AM - 12:00 PM, at the Ground Floor Library Pavilion of The General Society of Mechanics & Tradesmen, 20 West 44th Street (between 5th and 6th Avenues), New York, New York.

Please contact Margie Russell, Executive Director of NYARM, at 212.216.0654 or mrussell@nyarm.org, to register for this informative event.

Julie Miller Appointed to PBA Collaborative Law Committee

Wed, 21 Mar 2012 16:49:23 GMT

In February 2012, Julie Miller was appointed to the Pennsylvania Bar Association’s Collaborative Law Committee. The committee’s purpose, according to its mission statement, is to “address current issues regarding the collaborative law dispute resolution process; educate attorneys and the public about the collaborative law dispute resolution process; recommend standards of practice for attorneys using the collaborative law dispute resolution process; and monitor, propose, and/or support legislation or rules of court that further the development of the collaborative law dispute resolution process.”

Attorney Miller has been offering collaborative law as an option to clients since 2009. She is looking forward to furthering the objectives of the Committee and the opportunity to discuss the benefits of the process with other attorneys throughout the Commonwealth. She is also a member of the International Academy of Collaborative Professionals (IACP), Collaborative Professionals of Central Pennsylvania (CPCP), and a contributor to the Lancaster Law Blog’s Collaborative Law page.

MAHWAH WESTWOOD RIDGEWOOD TENAFLY BERGEN COUNTY NJ DIVORCE MEDIATOR LAWYER

ccaesq@att.net (Charles C. Abut) — Wed, 21 Mar 2012 16:24:38 GMT

The father was not held responsible for the medical expenses incurred by his ex-wife for her child of another relationship. Pediatric Surgical Associates v. Brennan et al., New Jersey App. Div., March 12, 2012

The father was not held responsible for the medical expenses incurred by his ex-wife for her child of another relationship. Pediatric Surgical Associates v. Brennan et al., New Jersey App. Div., March 12, 2012

Divorced feds, vets must now change beneficiaries manually – Va. court

Wed, 21 Mar 2012 15:55:34 GMT

Divorced federal employees, retirees, servicemembers, and veterans need to check their beneficiary designations in the wake of a recently overturned Virginia law. The Virginia Supreme Court has overturned as unconstitutional a long-standing Virginia law that automatically changed beneficiary designations for...

Divorced federal employees, retirees, servicemembers, and veterans need to check their beneficiary designations in the wake of a recently overturned Virginia law.

The Virginia Supreme Court has overturned as unconstitutional a long-standing Virginia law that automatically changed beneficiary designations for life insurance policies after divorce (Va. Code Sec. 20-111.1). The Court’s decision applies to life insurance benefits for federal employees, veterans and military personnel.

The reason the law is unconstitutional is the doctrine of federal preemption of state laws under the United States Constitution’s Supremacy Clause. Also, the federal government has “sovereign immunity”, so that a state court can only make an order affecting federal benefits if Congress has specifically made a law allowing the states to do something with that benefit in a certain prescribed way. For federal and military pension Survivor Benefits, Congress has authorized states to do this in divorces, but when it comes to insurance, it has not. In fact, the federal statute creating and governing Federal Employees’ Group Life Insurance (FEGLI), in its section on designated beneficiaries, has a provision expressly preempting state legislation that conflicts with it.

The Virginia statute’s drafters anticipated the possibility of federal preemption of it, and so the statute specifically provides that if it is inoperable as to a particular kind of insurance because of federal preemption of the state statute, then the same net result between dueling insurance beneficiaries shall be achieved by using a “constructive trust” on the insurance proceeds, so that the person named as beneficiary must turn around and pay them to the person who otherwise would be the beneficiary. If you think that doesn’t exactly pass the smell test, and the state seems to be deliberately nullifying and undoing the actions of the federal government, the Virginia Supreme Court agrees with you. It points out, however, that it is joining a small minority position on this question: most states’ courts that have addressed the issue think such statutes are just fine.

The Virginia statute also applies to any kind of “death benefit”, such as designated beneficiaries of accumulated retirement contributions for employees and servicemembers who die before retirement. The court decision does not say anything about those other kinds of benefits. But federal employees and servicemembers would be wise to check and correct those beneficiary designations, too.

Two dissenting justices argued that the provisions of the FEGLI Act were designed to protect the federal government from getting entangled in disputes between rival beneficiaries, and NOT for the purpose of actually giving more benefits to divorced spouses instead of new spouses; and that therefore Virginia’s “preemption workaround” provision was perfectly constitutional, because it makes the divorced widows pay the benefits to the new spouses while keeping the federal government uninvolved.

On a practical level, unfortunately, neither way of deciding this issue is workable, fair or convenient for everybody. The Virginia statute is one of those laws that is designed to do for people by default what most people would choose to do if they attended to their affairs – to remove a divorced spouse from being the beneficiary except in cases where the separation agreement or divorce decree specifically says that they will stay the beneficiary. Many of our clients have rightly been told over the years that the law does this automatically, and have probably relied on it. On the other hand, many servicemembers, veterans, and federal employees have been told by the federal government over the years that they must change their beneficiary designation upon divorce if they want their insurance beneficiary to change. We have had people come to us whose deceased exes deliberately chose to do nothing about the beneficiary designation because they logically inferred, from all those federal warnings, that the beneficiary designation would change only if they changed it, and they wanted the ex-spouse to stay covered. So this is a case where either result would predictably lead to some injustice for quite a few people. But this is certainly the right result constitutionally.

And what we need to do about it is very clear: all federal employees, retirees, servicemembers or veterans who ever got divorced in Virginia or now live in Virginia should make sure that their beneficiary designations reflect their wishes, or their obligations under divorce decrees or agreements.

For more of the legal details see Richard Crouch’s case note about this case.

Virginia legislature addresses beneficiary-designation mess

Wed, 21 Mar 2012 15:53:49 GMT

Virginia's General Assembly recently finished its work for the year, and tried to remedy the conflict between state and federal laws on what happens to an insurance beneficiary designation for a spouse when there is a divorce. The problem came to a head with a recent Virginia Supreme Court decision saying that Virginia Code § 20-111.1, which automatically revokes beneficiary designations upon divorce unless the divorce decree or agreement said otherwise, could not be applied to federal employees. (Which implies that it couldn't apply to veterans or servicemembers, either.) But there have been problems in individual cases for years.

The legislature's solution, for now, is HB 282 Divorce or annulment; revocation of death benefits; notice. It amends the statute on beneficary designations being revoked by divorce, NOT by removing or changing the language that tries to overrule federal preemption of the state statute, but by adding:

E. Every decree of annulment or divorce from the bond of matrimony entered on or after July 1, 2012, shall contain the following notice in conspicuous, bold print:

Beneficiary designations for any death benefit, as defined in subsection B of § 20-111.1 of the Code of Virginia, made payable to a former spouse may or may not be automatically revoked by operation of law upon the entry of a final decree of annulment or divorce. If a party intends to revoke any beneficiary designation made payable to a former spouse following the annulment or divorce, the party is responsible for following any and all instructions to change such beneficiary designation given by the provider of the death benefit. Otherwise, existing beneficiary designations may remain in full force and effect after the entry of a final decree of annulment or divorce.

To avoid thereby misleading people who have life insurance other than FEGLI or SGLI, it would be prudent and useful for that notice to add, “And then again, they may not. It depends on what kind of benefits they are, and on state and federal law.” The new legislation also does nothing about federal employees, retirees, servicemembers and veterans who are already divorced, who are also affected by the recent court decision. At least it provides another occasion to get the word out to them that they need to check their beneficiary designations.

President Threatens Veto

rmullman@gpoliakoff.com (Ray Mullman) — Wed, 21 Mar 2012 15:43:11 GMT

STATEMENT OF ADMINISTRATION POLICY--H.R. 5 – Protecting Access to Healthcare Act

The Affordable Care Act made significant improvements to our Nation’s health care system, including creating the Independent Payment Advisory Board (IPAB). The fifteen expert members of the Board, which will include doctors and patient advocates, will recommend to the Congress policies that reduce the rate of Medicare growth and help Medicare provide better care at lower costs. IPAB has been highlighted by the non-partisan Congressional Budget Office, economists, and health policy experts as an important contributor to Medicare’s long-term sustainability. The Board is prohibited from recommending changes to Medicare that ration health care, restrict benefits, modify eligibility, increase cost sharing, or raise premiums or revenues. Under current law, the Congress retains the authority to modify, reject, or enhance IPAB recommendations to strengthen Medicare, and IPAB recommendations would take effect only if the Congress does not act to slow Medicare cost growth.

H.R. 5 would repeal and dismantle the IPAB even before it has a chance to work. The bill would eliminate an important safeguard that, under current law, will help reduce the rate of Medicare cost growth responsibly while protecting Medicare beneficiaries and the traditional program. The Administration strongly opposes legislation that attempts to erode the important provisions of the Affordable Care Act.

Additionally, the Administration has serious concerns with key aspects of medical malpractice provisions included in H.R. 5. The goals of medical malpractice reform should be to provide fair and prompt compensation to patients who have been harmed by medical negligence, reduce preventable injuries, improve the quality of care, reduce defensive medicine, and lower medical liability premiums. However, H.R. 5 would establish inappropriate and harmful restrictions on health care lawsuits without effectively meeting these goals. Specifically, the Administration opposes placing artificial caps on malpractice awards which will prevent patients and other claimants who have been wrongfully harmed from receiving just compensation.

The Administration is committed to strengthening Medicare, protecting patients, and supporting the physicians who care for them. We believe that this legislation fails to accomplish these goals. If the President is presented with H.R. 5, his senior advisors would recommend that he veto the bill.

A "Break-Up Budget"?

bolch@supanet.com (John Bolch) — Wed, 21 Mar 2012 14:42:48 GMT

George makes his point

There have been concerns that the Budget could threaten the stability of family life by adding to financial pressures on families, and increasing conflict within couples. So, what has the Chancellor done for families?

I only found two items in the Chancellor's speech that are directly relevant to families:

Personal income tax allowance will be raised to £9,205 from April 2013, making 24 million people £220 a year better off; and
Child benefit will be phased out when someone in a household has an income of more than £50,000. It will fall by 1% for every £100 earned over £50,000. Only those earning more than £60,000 will lose the entirety of the benefit.

However, the following measures were previously announced:

Next month, jobseeker's allowance, income support, most income tax allowances, national insurance thresholds, inheritance tax allowance, disability benefits, maternity benefits, incapacity benefit and child benefit will all rise in line with the Consumer Prices Index last September (5.2%);
The child element of child tax credits will rise by £135 in 2012-13;
The couple and lone-parent elements of working tax credit will not go up in line with inflation;
Couples with children will have to work for 24 hours a week between them, not 16, in order to qualify for working tax credit;
Personal allowance will rise by £630 on 6 April to £8,105 for the 2012-13 tax year;
The upper threshold of the basic rate of income tax will fall by £630 to £34,370 in April; and
The 1% stamp duty rate for first-time buyers, on properties costing between £125,000 and £250,000, is being reintroduced on 24 March.

Does this amount to a "Break-Up Budget"? I will leave it to the reader to decide, although Barnardo's is not impressed.

140 Law - Legal Headlines for Wednesday, March 21, 2012

Wed, 21 Mar 2012 13:36:23 GMT

Here are the leading legal headlines from Wise Law on Twitter for Wednesday, March 21, 2012:

- Rachel Spence, Law Clerk

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG

If you think that all meetings with experts can be recorded, think again

esolotoff@foxrothschild.com (Eric S. Solotoff) — Wed, 21 Mar 2012 13:23:09 GMT

While it doesn't happen in every case, from time to time there is a request made by a client or opposing counsel to tape the meeting between the opposing expert. This happens more frequently in contested custody cases, but it could happen as to any expert, I suppose. The general rule seemingly had been that these sessions can be taped (with notice - not surreptitiously). Why do people want to do this? Some people are not trusting. Others want to make sure that they are not misquoted in an experts report. Some even do this if an expert is known to ask leading types of questions suggesting a response that may then be used against the party being interviewed.

A question recently arose as to whether the experts can be compelled to tape all interviews, not only of the one party, but of the children too. In a reported (precedential) trial court opinion in the case of Koch v. Koch which was decided last year but approved for publication last week, the judge refused to allow all interviews to be taped. Specifically, the court concluded that concludes that a party has the right to record his or her own interviews with a psychologist or psychiatrist, but does not have the right to compel the other party’s expert to record interviews of the other party or the parties’ children.

As to the general rule noted above, the judge here was not so sure and the opinion included a threshold discussion as to whether expert interviews in a custody case could be taped since the case that lawyers generally relied on involved the taping of a session with a psychologist in a civil litigation. Notwithstanding the conclusion, the judge noted:

Accordingly, a custody evaluation is an expert report where the court expects, and is
assisted by, the independent professional judgment of a licensed mental health expert. Requiring recordings could undermine the very purpose of the evaluation. If the children know that they are being recorded, and know that their parents are in a custody dispute, the children might be less candid for fear that their parents will hear what they say to the evaluator. Such recordings effectively bring the parents into the children’s interviews and could distort the information needed to prepare an accurate and balanced evaluation.

The trial judge then boiled the issue down to it's basics as follows:

The fundamental issue then becomes: is it in the best interest of children to allow their parents to have access to the children’s interviews? The evaluator often observes and has discussions with the parents while the parent interacts with the children. When, however, the evaluator speaks to the children alone, the very purpose of that interview is to obtain the children’s independent views. Giving parents recordings of those interviews, albeit after the fact, undercuts the very goal of the interview and prevents the evaluator from getting the candid views of the children because the children will know that their parents will be listening
to the interviews.

Of even greater concern is the high potential for misuse of the recordings of the
children’s interviews. In contentious custody disputes, it is not hard to imagine how a parent could confront a child with the child’s own words or make a child believe that he or she has somehow been disloyal to that parent. Even the best meaning parents, when concerned by what they heard in their child’s recorded interview, may let words or information from the child’s interview slip that may cause anxiety or harm to the child. It is important to keep in mind that children being interviewed in a custody evaluation are aware that their parents are in a child custody dispute, and they may already have anxiety and concern over their role in that dispute and how the custody arrangements will be resolved.

Against the obvious potential harm to the child, it is hard to identify a legitimate need
for the disclosure of the child’s interview. As already pointed out, the proponent relies on the need for open discovery in custody matters. It is worth reiterating that custody evaluations are not discovery devices. Indeed, the children have not brought the action; rather they are innocent children swept up in a dispute between their parents. In short, litigants’ rights to discovery cannot trump the court’s responsibility to protect the child. As a consequence, if one party hires an expert who chooses to record all interviews and make those recordings available to a party, that party will need to obtain the permission of the court before the expert can release any recording of a child’s interview to any counsel or to any parent.

The court concluded that it had the power to decide if, and under what conditions, any mental health expert can make recordings of children’s interviews available to counsel or a party when that interview is conducted as part of a custody evaluation.

Being a trial court opinion, it is not binding on other trial courts or the Appellate Division, however, it is persuasive. However, since custody reports often quote or characterize things that a child says, one wonders whether the court needed to go this far because parents get to see the reports. The difference, however, is that the report is after an evaluation and not during where a child can try to "change" what he/she said. Moreover, the parent that might use the information in a recording is likely the same parent that would grill a child after their interview with the expert anyway.

In any event, this case does provide some useful guidance and well reasoned analysis.

_________

Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.

U.S. Supreme Court Rules That State Employees Cannot Sue under "Self-Care" Provisions of the FMLA

jsn@franczek.com (Jeff Nowak) — Wed, 21 Mar 2012 12:48:24 GMT

Posted by Jeff Nowak

That pesky State of Maryland! (Not that I hold grudges all these years after your Maryland Terapins beat my Indiana Hoosiers for the 2002 NCAA basketball championship!) With a little assistance from the U.S. Supreme Court, the State of Maryland avoided potential FMLA liability yesterday in Coleman v. State of Maryland Court of Appeals when the Supremes held that the Family and Medical Leave Act does not allow lawsuits against states by their employees when the suit deals with the "self-care" provisions of the FMLA. Consequently, Maryland's victory is a win for all states and their subdivisions. The Facts Plaintiff Daniel Coleman Read More...

Jesus & Mo get to the heart of the matter

bolch@supanet.com (John Bolch) — Wed, 21 Mar 2012 12:15:28 GMT

Link: Jesus and Mo

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